196 Iowa 152 | Iowa | 1923
To a better understanding of the ease and the claims of the parties, we shall state a summary of the plaintiffs’ petition. It is alleged that plaintiffs are residents of, and own lands sought to be included in, what is known as the Pony Creek Drainage District; that the work sought to be done by the board is not a public work, in that the board by resolution (January, 1922, from which, in the Vinton case, the appeal was taken) determined that as to these lands it was not conducive to public health, convenience, welfare, or public benefit, to drain the same; that, immediately following the legislative act of the board aforesaid, the board ordered certain repair work done on what is known as the Pony Creek Ditch, and let a contract therefor; that, after it was determined, as a matter of law, that the work now sought to be done was not for public benefit, it is a
We take it that what appellants really mean by the foregoing allegations, or some of them at least, as to failure to file a petition, deliver it to the engineer, give notice, and so on, is that the record does not show these things. A different aspect is presented when we consider what was really done, and the' reasons therefor, which show, we think, that there was a fair attempt by the officers to comply with the law, and to rectify, under a curative act by the legislature, any mistakes that had
After the first petition was filed, in 1902, under the original drainage acts, some of the things had to be done over again, because of the holding of this court as to the unconstitutionality of certain parts of the original drainage law. Thereafter, under an act by the legislature, notice was given, and other proceedings authorized under such act were had.
Going back again to the petition filed with the county auditor in November, 1902, for the establishment of a drainage district to be known as the Pony Creek Drainage District, it appears that the petition was filed by every one of the property owners whose property abutted upon the drainage improvement, and through whose property it passed; and the petition recited that the signers thereof, “being all of the owners of the land through which the improvement would run, consented thereto, and waived all claims for damages thereby.” This petition and the record were produced, and introduced in evidence. The board, acting upon said petition, made a record which was indorsed thereon, whereby they accepted the route of the ditch and, adopting it, accepted the grant of right of way. This was in December, 1902. It is contended by appellees that serving notice would not have added anything to the waiver signed by all the landowners, and that such consent and waiver obviated the necessity of any notice under the then existing law, Section 1940, Chapter 2, Title X, of the Code. The portion of said section referring to notice is as follows:
“The auditor shall immediately thereafter cause notice in writing to be served on the owner of each tract of land through or abutting upon which the proposed improvement is to be located. ’ ’
Without stopping to discuss the question whether the notice was obviated by the waiver, it is enough now to say that it has a bearing, upon the question of knowledge and acquiescence, which will be referred to later in the opinion.
The civil engineer who made the survey of the district in 1902 testifies that he had the original petition before him and with him at the time he made the survey; that he made a plat and profile and specifications of the proposed ditch, and filed
In 1904, this court, in Beebe v. Magoun, 122 Iowa 94, held the statute, Chapter 2, Title X, of the Code, to be unconstitutional, for want of notice to the various persons whose lands would be taxed to pay for, the improvement. The legislature, being then in session, passed Chapters 67 and 68 of the Acts of the Thirtieth General Assembly. The purpose of these acts was doubtless to save the various drainage enterprises which had been entered into and partly constructed, or constructed and partly paid for. Under this record, we think it is shown that the board of supervisors did all that ivas required, under Chapter 67, to remedy the defects which had gone before. The assessment that had been made was recalled, and the benefits were reascertained and reapportioned by new commissioners appointed by the board to reascertain and reapportion the same. .A time was set for hearing on the commissioners’ report, and a relevy and reassessment made, after all persons interested and owning land in the district had been served with notice, as required by law. After the holding in the Beebe case, the board, in November, 1904, ordered that the tax levied be recalled, and that the cost and expense of the improvement be reascertained by a new commission. The neiv commission, appointed November, 1904, filed an extended report; the board then fixed a day; and notice was served, as before stated.
It is contended by appellees that Chapter 67, before referred to, is a curative act, and that it was so held in the Smittle case,
It is further contended by appellants that, up to 1908, no district had been established, and they say that, if any drainage district was established, it was in 1908. They refer at some length to the proceedings had in 1908, and contend that, by the acts of the board in that year, no district was established. It appears that, among other proceedings had in 1908, a petition was filed before the board for a new Pony Creek ditch, but that the petition was defied. -In the view we take of the case, we do not deem it necessary, as to 1908 proceedings, to go into further details. It appears- that, in 1908, the board passed certain resolutions in regard to reopening and straightening the old ditch; that there were some changes made in the ditch itself. It is claimed that there were certain defects in the proceedings, so that it could not be claimed that the ditch ivas legally established at that time.
It should liave been said that, after the proceedings in 1902 and thereafter, bonds to the amount of $40,000 were issued, and assessments made and paid. The bonds have since been paid. For more than 20 years, a ditch, with dikes and embankments, has been used, and known as the Pony Creek Drainage District, upon which taxes have been assessed and paid annually. During all this time, the district has been recognized as an established district. All the property owners in the district, including the plaintiffs, have paid their taxes assessed therein, without protest. During these years, with the knowledge of the property owners within the district,- including appellants, the board has exercised jurisdiction over the district and improvement therein, with the full knowledge and acquiescence of all parties. All the property owners, including appellants, have paid their assessment of taxes for the construction and maintenance of this ditch. In all the proceedings of the board from and after 1902, neither these appellants nor any other property owner in the district appealed from the action of the board, or objected thereto, or in any manner contested such action. The ditch is
It is conceded by appellants in argument that the action of the board of supervisors in January, 1922 (in the Vinton case), to be referred to in a moment, “was taken with reference to a proposed district for boundaries identical with what had been known as the Pony Creek Drainage District, and affected the same identical territory as that to be assessed for benefits under the resolution (February, 1922) for repair work, of which we now complain. ” It is alleged in the answer in this case that the Vinton petition was for the establishment of a new district, with boundaries identical with the existing Pony Creek Drainage District, but asking for a different location of the improvement within said district. The boundaries of the district were described in the earlier proceedings. We understand’ from this, and from the record, that, in the ■Vinton case, the petition was for the same district, but asking that the ditch, for a part-of the way at least, be located or relocated about two miles from the present ditch. The old ditch and the one proposed begin at practically, the same point, and empty into the Watkins ditch, close together.
We have not attempted to give all the details and everything that was done. To go into further detail would unduly prolong the opinion. -We have attempted to give the more important circumstances bearing upon the question of acquiescence and estoppel.
Going back now to the immediate proceedings of the board of supervisors upon which these two cases are based, it appears that, in September, 1921, Vinton and others filed a petition and bond for the establishment of a new district. An engineer was appointed September 29, 1921. The engineer filed a report recommending new improvement work, and set out lands benefited, which included the lands in Pony Creek Drainage Dis-
“This being the time fixed for a hearing on the petition of S. F. Vinton and others, asking for the establishment of a drainage district, as set out in said petition, the board takes up the question as presented by the petition, and after viewing the premises described in the petition, and after hearing the arguments presented by the petitioners, and after hearing the arguments from those opposed to the petition, and after considering the objections filed with the county auditor, amounting to about $267,000, and after considering all matter bearing on the question presented by the petition, finds that said petition, in substance, asks for a relocation of the old Pony Creek ditch, directly to the west of the proposed new ditch, and the purpose of the same is to drain the lands now sought to be drained by the now existing Pony Creek ditch; that, because there would be no benefit derived from the new ditch which does not at this túne accrue to the present Pony Creek ditch, and the board, after considering the report of commissioner Seth Dean, and the matters above set out, and all other matters, finds that the levy of the drainage district, as proposed in the petition of S. F. Vinton and others, would not be for public benefit or utility, nor conducive to the public health, convenience, or welfare. Be it therefore resolved by the board of supervisors, after considering all the matters hereinbefore set out,,that the petition of S. F. Vinton and others be and the same is hereby dismissed, ’ ’ etc.
From this action by the board, Vinton and others appealed to the district court, and, as before stated, the appeal was dismissed, on motion of the defendants. After the Vinton petition was filed, and before it was acted upon, as just stated, and while that matter was still pending, other landowners in the district filed what they denominated an amendment to petition, asking that the old ditch be cleaned out, repaired, etc. On February 27, 1922, the board of supervisors, acting upon said so-called amendment, adopted the following resolution:
“The board of supervisors of Mills County, Iowa, being in regular adjourned session, with all the members present and acting, takes up for further consideration the matter of the Pony*161 Greek Drainage District iieretofore established by the board of supervisors of Mills County, Iowa, September 14, 1908. And it now appearing to the board of supervisors, by their own personal inspection and by petition, that the Pony Creek Drainage District is out of repair, that the same has become filled and otherwise rendered unserviceable, and the board finds out that the ditch should be cleaned out, repaired, deepened, and widened, to conform to the original specifications, and that the levees be repaired. Therefore, be it resolved by the board of supervisors of Mills County, Iowa, working under Section 1989-a21, Supplement, 1913, Seth Dean, a civil engineer, make plans and specifications and estimates of the cost of repairing, widening, and deepening said Pony Creek ditch, and that the county auditor of Mills County, Iowa, advertise for bids for said work, according to plans and specifications filed by Seth Dean, drainage engineer for Mills County, Iowa, said advertisements for bids to be inserted for one week in some contractor’s journal, said contract to be let on the 10th day of March, 1922. And be it further resolved by said board that the costs of said repairs, cleaning out, deepening, and widening shall be assessed against the lands and property in said drainage district, as provided by the drainage law of Iowa.”
On March 8, 1922, notice to contractors was given. Objections were filed by the Chicago, Burlington & Quincy Railroad. Objections were also filed by S. F. Yinton and another. On March 24, 1922, the board took up for consideration and further business, in connection with the substitute petition for cleaning out the present ditch, the objections of the railroad company and objections by Yinton and others for letting the contract on the old ditch. Bids were received, one of which was accepted, and the chairman of the board and the auditor were empowered to sign a contract for the work. No appeal was taken from the action of the board of February 27 and March 24, 1922. This injunction suit was begun June 23, 1922.
1. Appellants do not point out the particular provisions of the Federal and state Constitutions under which it is contended that the drainage law is unconstitutional. Appellants’ proposition, as they state it, is that, the board having, by a legislative act, determined that it is not conducive to public
We may observe here, in passing, that appellants, in their
2. We are of opinion that appellants have not shown that the old drainage district ivas not legally established, or that the proceedings were entirely void. It was, for more than 20 years, considered by all interested parties as established, and all parties acted as though it had been. The drainage district is made a party defendant to this action by the appellants, thus, in a sense, even now recognizing it as an established district. It may be conceded that there were some irregularities in the proceedings. Perhaps it would be better to say that, after the lapse of time, the difficulty lies in proving what was, in fact, done. Surely, it would not be improper, under the circumstances, to say that the presumption of regularity, and that the officers did their duty, should apply, and be given some force. While the record of the board at the beginning may not show all the proceedings had, it must be remembered that, at that time, the law did not require that the record show all these things. This being so, some of the papers referred to may have been mislaid
It is -appellants’ contention that they cannot be estopped from questioning a void tax, and that no estoppel can be found against appellants for a new and independent wrong. Cases are cited in support of these propositions, but we think they are not applicable to this case. The question as to whether the taxes were void is now of slight importance. If the district was legally
3. Appellees contend that, since the district was legally established, appellants’ remedy was by appeal, and that such remedy is exclusive. On this proposition they cite Section 1989-a46, Code Supplement, 1913; Lightner v. Greene County, 145 Iowa 95; Peterson v. Sorensen, 192 Iowa 471, 479. There may be force in this contention; but, since we have reached the conclusion that the case ought to be affirmed on other grounds, it is unnecessary to discuss this feature of the case. ’ .
Without further discussion, we reach the conclusion that the judgment of the district court ought to be affirmed. . It is— Affirmed.